Common use of First Offer Clause in Contracts

First Offer. (a) SBC acknowledges and agrees that, in the event it shall, at any time during the period beginning on the Adjustment Date and ending on the date of termination of the SBC Warburg EPI Agreement, desire, other than in connection with the Initial Public Offering, to Sell Class B Shares acquired pursuant to this Agreement, SBC shall first offer to sell any such Class B Shares or Options in respect thereof to PSC for a price, including an amount equal to the fair market value of any consideration not paid in cash, and upon terms, specified in writing by SBC and delivered to PSC (each such offer, a "First Offer"), provided that SBC shall not be required to deliver a First Offer to PSC in respect of Class B Shares being Sold by SBC in any widely-disbursed offering or in any transaction that complies with Rule 144 (or any successor thereto) under the Securities Act, or in respect of up to 200,000 Class B Shares which may be Sold to employees of SBC or its Affiliates. (b) fair market value of any consideration not paid in cash, and upon the terms contained in such First Offer. The notice of acceptance by PSC shall specify a date for the closing of the purchase, which shall be not more than twenty (20) days after the date of such notice. At such closing, PSC will deliver the purchase price specified in Section 4.4(a) to SBC in immediately available funds against receipt by PSC from SBC of one (1) or more certificates representing the Class B Shares described herein or the cancellation of Options in respect thereof, which Class B Shares or Options in respect thereof shall be free of any Encumbrances attributable to any action taken by SBC or any of its Affiliates. (c) In the event PSC rejects or does not accept a First Offer within twenty (20) days of its receipt, SBC shall be entitled to offer the Class B Shares referred to in the First Offer to third parties for a price and upon other terms and conditions at least as favorable to SBC as those set forth in the First Offer. (d) If any third party shall accept an offer by SBC's complying with the requirements of Section 4.4(c), then PSC's right to purchase or otherwise acquire the Class B Shares subject to such offer or Options in respect thereof shall be terminated; provided that in the event such acceptance does not result in a sale or acquisition of such Class B Shares within three (3) months of the rejection or non-acceptance of the First Offer by PSC, then SBC shall not Sell such Class B Shares to any third party unless such Shares or Options in respect thereof are offered again to PSC as provided in Section 4.4(a). (e) The rights set forth in this Section 4.4 shall not be assignable by PSC except in whole and to a Wholly-Owned Subsidiary of PSC.

First Offer. If a Shareholder (athe "Selling Shareholder") SBC acknowledges desires to transfer any or all of such Shareholder's Stock (the "Offered Stock"), such Shareholder shall first give written notice (a "Transfer Notice") thereof to the Company and agrees thatthe other Shareholders, in identifying the event it shallproposed transferee, at any time during the period beginning on number of shares sought to be transferred, the Adjustment Date and ending on proposed purchase price (the date of termination "Offered Price"), if applicable, the terms of the SBC Warburg EPI Agreementproposed transaction including the proposed transaction date and a copy of any written offer or other writing setting forth the terms and conditions of the proposed transaction. Such Transfer Notice shall constitute an irrevocable offer by the Selling Shareholder to sell all of the Offered Stock to the other Shareholders at the Offered Price and upon the same terms and conditions as the Selling Shareholder is willing to sell the Offered Stock to the proposed transferee; provided, desirehowever, that without the prior written consent of the other than in connection with the Initial Public OfferingShareholders (which consent shall not be unreasonably withheld), to Sell Class B Shares acquired all transfers pursuant to this Agreement, SBC Article I shall first offer to sell any such Class B Shares or Options in respect thereof to PSC be solely for a price, including an amount equal to the fair market value of any consideration not paid in cash, and upon terms, specified in writing by SBC and delivered to PSC (each such offer. Once given, a "First Offer"), provided that SBC shall Transfer Notice may not be required to deliver a First Offer to PSC in respect modified or amended except with the written consent of Class B Shares being Sold by SBC in any widely-disbursed offering or in any transaction that complies with Rule 144 the Company and the Shareholders (or any successor theretotheir Permitted Transferees (as defined in Section 1.6 below)) under the Securities Act, or in respect of up to 200,000 Class B Shares which may be Sold to employees of SBC or its Affiliates. (b) fair market value of any consideration not paid in cash, and upon the terms contained in such First Offer. The notice of acceptance by PSC shall specify a date for the closing holding at least two-thirds of the purchase, which shall be not more than Common Stock of the Company. Within the twenty (20) days after day period following the date giving of the Transfer Notice (the "First Offer Period"), the other Shareholders may elect, by giving written notice of such noticeelection to the Selling Shareholder and the Company, to purchase all but not less than all of the Offered Stock. At If more than one of the Shareholders makes such closingelection, PSC each such electing Shareholder shall purchase its pro rata share based upon the number of shares of Common Stock held by it at the time of the election. Any modification or amendment of a Transfer Notice will deliver be deemed a new Transfer Notice with respect to the purchase price specified in Section 4.4(a) to SBC in immediately available funds against receipt by PSC from SBC of one (1) or more certificates representing the Class B Shares described herein or the cancellation of Options in respect thereof, which Class B Shares or Options in respect thereof shall be free of any Encumbrances attributable to any action taken by SBC or any of its Affiliates. (c) In the event PSC rejects or does not accept a First Offer within twenty (20) days of its receipt, SBC shall be entitled to offer the Class B Shares referred to in proposed transfer and will restart the First Offer to third parties for a price and upon other terms and conditions at least as favorable to SBC as those set forth in the First OfferPeriod. (d) If any third party shall accept an offer by SBC's complying with the requirements of Section 4.4(c), then PSC's right to purchase or otherwise acquire the Class B Shares subject to such offer or Options in respect thereof shall be terminated; provided that in the event such acceptance does not result in a sale or acquisition of such Class B Shares within three (3) months of the rejection or non-acceptance of the First Offer by PSC, then SBC shall not Sell such Class B Shares to any third party unless such Shares or Options in respect thereof are offered again to PSC as provided in Section 4.4(a). (e) The rights set forth in this Section 4.4 shall not be assignable by PSC except in whole and to a Wholly-Owned Subsidiary of PSC.

First Offer. Except for (ai) SBC acknowledges and agrees thatTag-Along Sales made in accordance with Section 2.4, (ii) Drag-Along 100% Sales made in accordance with Article III, or (iii) the ninety (90) day period immediately following the Effective Time (as defined in the event it shallMerger Agreement), no Financing Party shall Transfer any Shares except as specifically permitted by this Section 2.8. If at any time during any Financing Party desires to Transfer all or any part of the period beginning Shares held by such Person (other than in accordance with Section 2.8.4) (a "FINANCING SELLING PARTY"), then such Financing Selling Party shall deliver written notice of its desire to sell such Shares (a "NOTICE OF INTENTION"), accompanied by a copy of a proposal relating to such sale (the "SALE PROPOSAL"), to each of the Purchaser and the Company, setting forth such Financing Selling Party's desire to make such sale, the number and class of Shares proposed to be transferred (the "OFFERED SECURITIES"), the cash price at which such Financing Selling Party proposes to sell the Offered Securities (the "FIRST OFFER PRICE") and other terms applicable thereto. Upon receipt of the Notice of Intention, the Purchaser and the Company shall then have the right to purchase at the First Offer Price and on the Adjustment Date other terms specified in the Sale Proposal, all, but not less than all (unless the Financing Selling Party shall have consented to the purchase of less than all of such Offered Securities). The rights of the Purchaser and ending on the Company pursuant to this Section 2.8.2 shall be exercisable by the delivery of notice to the Financing Selling Party (the "NOTICE OF EXERCISE"), within thirty (30) calendar days from the date of termination delivery of the SBC Warburg EPI AgreementNotice of Intention. If the Financing Selling Party receives more than one Notice of Exercise within such thirty (30) day period, desirethe priority as among the Purchaser and the Company to match the First Offer Price and purchase such Shares shall be, other than FIRST, the Purchaser and, SECOND, the Company. The Notice of Exercise shall state that the Purchaser or the 15 Company, as the case may be, is willing to purchase the Offered Securities on the terms specified in connection with the Initial Public OfferingSale Proposal. A copy of such Notice of Exercise shall also be delivered by the Purchaser or the Company, as the case may be, to Sell Class B Shares acquired each of the Purchaser or the Company, as the case may be. The rights of the Purchaser and the Company pursuant to this Agreement, SBC Section 2.8.2 shall first offer to sell any such Class B Shares or Options in respect thereof to PSC for a price, including an amount equal to the fair market value of any consideration not paid in cash, and upon terms, specified in writing by SBC and delivered to PSC terminate if unexercised thirty (each such offer, a "First Offer"), provided that SBC shall not be required to deliver a First Offer to PSC in respect of Class B Shares being Sold by SBC in any widely-disbursed offering or in any transaction that complies with Rule 144 (or any successor thereto30) under the Securities Act, or in respect of up to 200,000 Class B Shares which may be Sold to employees of SBC or its Affiliates. (b) fair market value of any consideration not paid in cash, and upon the terms contained in such First Offer. The notice of acceptance by PSC shall specify a date for the closing of the purchase, which shall be not more than twenty (20) calendar days after the date of such noticedelivery of the Notice of Intention. At such closing, PSC will deliver the purchase price specified in Section 4.4(a) to SBC in immediately available funds against receipt by PSC from SBC of one (1) or more certificates representing the Class B Shares described herein or the cancellation of Options in respect thereof, which Class B Shares or Options in respect thereof shall be free of any Encumbrances attributable to any action taken by SBC or any of its Affiliates. (c) In the event PSC rejects that the Purchaser or does not accept a First Offer the Company exercise their rights to purchase all (unless the Financing Selling Party shall have consented to the purchase of less than all) of the Offered Securities in accordance with this Section 2.8.2, then the Selling Financing Party must sell the Offered Securities to the Purchaser and/or the Company, as the case may be, within twenty thirty (2030) calendar days from the date of its receiptdelivery of the Notice of Exercise received by the Selling Financing Party, SBC on such date as shall be entitled determined by the Financing Selling Party by written notice thereof. If all notices required pursuant to offer this Section 2.8.2 have been duly given and the Class B Shares referred Purchaser and the Company do not exercise their respective options to in purchase the Offered Securities at the First Offer Price, then the Financing Selling Party shall have the right, subject to third parties compliance by the Financing Selling Party with the provisions of Section 2.3 hereof, for a price and upon other terms and conditions at least as favorable period of ninety (90) calendar days from the earlier of (i) the expiration of the option period pursuant to SBC as those set forth in the First Offer. (d) If any third party shall accept an offer by SBC's complying this Section 2.8.2 with the requirements of Section 4.4(c), then PSC's right to purchase or otherwise acquire the Class B Shares subject respect to such offer Sale Proposal or Options in respect thereof shall be terminated; provided (ii) the date on which such Financing Selling Party receives notice from the Purchaser or the Company that in the event such acceptance does they will not result in a sale or acquisition of such Class B Shares within three (3) months exercise all of the rejection or non-acceptance of the First Offer by PSCoption granted pursuant to this Section 2.8.2, then SBC shall not Sell such Class B Shares to sell to any third party unless all, but not less than all, of the Offered Securities remaining unsold at a price of not less than the First Offer Price and on terms not less favorable to the Financing Selling Party than, the other terms specified in the Sale Proposal. Notwithstanding the foregoing, in the event that the Financing Selling Party desires to Transfer Senior Subordinated Notes of the Company due 2010 ("Notes") or Warrants together with the Offered Securities, such Notes and/or Warrants shall constitute "Offered Securities" for purposes of this Section 2.8.2. In such event, neither the Purchaser nor the Company may exercise their respective option to purchase any of the Shares or Options Warrants constituting Offered Securities unless all of the Notes and Warrants included in respect thereof the Offered Securities are offered again to PSC purchased as provided in Section 4.4(a)well. (e) The rights set forth in this Section 4.4 shall not be assignable by PSC except in whole and to a Wholly-Owned Subsidiary of PSC.

First Offer. (a) SBC acknowledges and agrees thatSo long as any shares of the Series B Preferred Stock are outstanding, if the Company proposes to issue any shares of Common Stock or any security convertible into or exchangeable for shares of Common Stock, or any unit of securities which includes shares of Common Stock or any security convertible into or exchangeable or exercisable for shares of Common Stock (in the case of securities convertible into or exchangeable or exercisable for shares of Common Stock, whether or not so convertible or exchangeable or exercisable only upon payment of additional consideration), in the event it shall, at any time during the period beginning on the Adjustment Date and ending on the date of termination of the SBC Warburg EPI Agreement, desire, other than each case in connection with a financing by the Initial Public OfferingCompany, subject to Sell Class B Shares acquired pursuant to this Agreement, SBC shall first offer to sell any such Class B Shares or Options in respect thereof to PSC for a price, including Section 5.5 hereof (an amount equal to the fair market value of any consideration not paid in cash, and upon terms, specified in writing by SBC and delivered to PSC (each such offer, a "First OfferOFFERING"), provided that SBC then the Company shall not prior thereto or simultaneously therewith offer to each Investor a percentage of the securities being issued in the Offering (the "OFFERING SECURITIES") equal to such Investor's then percentage ownership of the aggregate of the Underlying Common Stock and the Common Stock (such Investor's "PERCENTAGE SHARE"). Such offer shall be required made by written notice setting forth the quantity and description of the security proposed to deliver a First Offer be issued, the price to PSC be received in respect exchange therefor and the proposed date, time and place of Class B Shares being Sold the closing of the Offering (the "OFFERING NOTICE"). The Offering Notice shall be delivered by SBC in any widelyhand or by first-disbursed offering class, certified or in any transaction that complies with Rule 144 (or any successor thereto) under the Securities Actovernight mail, postage prepaid, or in respect of up by telecopier, by the Company to 200,000 Class B Shares which may be Sold to employees of SBC or its Affiliateseach Investor. (b) fair market value of any consideration not paid in cashEach such Investor shall thereupon be entitled, and upon the terms contained in such First Offer. The notice of acceptance by PSC shall specify for a date for the closing of the purchase, which shall be not more than twenty period ending thirty (2030) days after the date of the Offering Notice (the "ELECTION PERIOD"), to elect to purchase, at the price and upon the terms set forth in the Offering Notice, all or a portion of such notice. At such closing, PSC will deliver Investor's Percentage Share of the purchase price specified in Section 4.4(a) Offering Securities by notice to SBC in immediately available funds against receipt by PSC from SBC of one (1) or more certificates representing the Class B Shares described herein or Company during the cancellation of Options in respect thereof, which Class B Shares or Options in respect thereof shall be free of any Encumbrances attributable to any action taken by SBC or any of its AffiliatesElection Period. (c) In Each Investor electing to purchase its Percentage Share of the event PSC rejects Offering Securities pursuant to this Section 5.1 (a "PARTICIPATING INVESTOR") shall, concurrently with the closing of any such Offering, deliver to the Company an official bank or does not accept a First Offer within twenty certified check for the appropriate amount to the Company by hand delivery or by first-class, certified or overnight mail, postage prepaid addressed to the Company's principal office (20or at such other place as the Company may designate at least ten (10) days of its receipt, SBC shall be entitled prior to offer the Class B Shares referred to in the First Offer to third parties for a price and upon other terms and conditions at least as favorable to SBC as those set forth in the First Offer. (d) If any third party shall accept an offer by SBC's complying with the requirements of Section 4.4(c), then PSC's right to purchase or otherwise acquire the Class B Shares subject to such offer or Options in respect thereof shall be terminated; provided that in the event such acceptance does not result in a sale or acquisition closing of such Class B Shares within three (3) months of Offering); and simultaneously therewith the rejection or Company shall issue and deliver to each Participating Investor certificates representing the Offering Securities being purchased by such Participating Investor. The Company covenants and agrees that all Offering Securities will, upon issuance and payment therefor, be duly and validly issued and outstanding, fully paid and non-acceptance of assessable and free from all taxes, liens, and charges with respect to the First Offer by PSC, then SBC shall not Sell such Class B Shares to any third party unless such Shares or Options in respect thereof are offered again to PSC as provided in Section 4.4(a)issue thereof. (e) The rights set forth in this Section 4.4 shall not be assignable by PSC except in whole and to a Wholly-Owned Subsidiary of PSC.

First Offer. (a) SBC acknowledges and agrees that, in the event it shall, If at any time during the period beginning on the Adjustment Date and ending on the date of termination any of the SBC Warburg EPI AgreementKey Stockholders wishes to sell, desireassign, other than in connection with the Initial Public Offering, to Sell Class B transfer or otherwise dispose of any or all of such Key Stockholder's Shares acquired pursuant to this Agreementthe terms of a bona fide offer received from a third party, SBC such Key Stockholder shall first submit a written offer to sell any such Class B Shares or Options in respect thereof to PSC for a the Company on terms and conditions, including price, including an amount equal not less favorable to the fair market value of any consideration not paid in cash, and upon terms, specified in writing by SBC and delivered Company than those on which such Key Stockholder proposes to PSC sell such Shares to such third party (each such offer, a the "First Offer"), provided that SBC shall not be required to deliver a . The First Offer to PSC in respect of Class B Shares being Sold by SBC in any widely-disbursed offering or in any transaction that complies with Rule 144 (or any successor thereto) under shall disclose the Securities Act, or in respect of up to 200,000 Class B Shares which may be Sold to employees of SBC or its Affiliates. (b) fair market value of any consideration not paid in cash, and upon the terms contained in such First Offer. The notice of acceptance by PSC shall specify a date for the closing identity of the purchaseproposed purchaser or transferee, which shall the Shares proposed to be not more than twenty sold or transferred (20the "Offered Shares"), the agreed terms of the sale or transfer and any other material facts relating to the sale or transfer. Within fifteen (15) days after receipt of the date First Offer, the Company shall give notice to the Key Stockholder of such notice. At such closing, PSC will deliver the its intent to purchase price specified in Section 4.4(a) to SBC in immediately available funds against receipt by PSC from SBC of one (1) or more certificates representing the Class B Shares described herein or the cancellation of Options in respect thereof, which Class B Shares or Options in respect thereof shall be free of any Encumbrances attributable to any action taken by SBC all or any portion of its Affiliates. (c) In the event PSC rejects or does not accept a First Offer within twenty (20) days of its receipt, SBC shall be entitled to offer Offered Shares on the Class B Shares referred to in the First Offer to third parties for a price and upon other same terms and conditions at least as favorable to SBC as those set forth in the First Offer. If the Company does not elect to purchase all of the Offered Shares, then there shall be no right to purchase shares pursuant to this Section 3(a). The Company shall act upon the First Offer as soon as practicable after receipt of the First Offer, and in any event within fifteen (15) days after receipt thereof. In the event that the Company shall elect to purchase all or part of the Offered Shares covered by the First Offer, the Company shall communicate in writing such election to purchase to whichever of the Key Stockholders has made the First Offer, which communication shall be delivered by hand or mailed to such Key Stockholder at the address set forth on SCHEDULE II hereto and as described in Section 7 below and shall, when taken in conjunction with the First Offer be deemed to constitute a valid, legally binding and enforceable agreement for the sale and purchase of the Shares covered thereby. In the event that the Company does not purchase all of the Offered Shares offered by the Key Stockholder pursuant to and within thirty (30) days after the First Offer, the agreement to purchase the Offered Shares shall be deemed null and void. Notwithstanding the provisions of this subsection (a), the Key Stockholder proposing to sell the Offered Shares shall have the discretion to allow the Company to buy a portion of such Offered Shares. (db) If the Company fails to purchase all or, subject to the Key Stockholder's consent, any part of the Offered Shares, the Key Stockholder shall submit a written offer (the "Second Offer") to sell such Offered Shares (the "Remaining Shares") to the Preferred Shareholders on terms and conditions, including price, not less favorable to the Preferred Shareholders than those on which such Key Stockholder proposes to sell such Remaining Shares to the third party party. The Second Offer shall accept an offer by SBC's complying with also disclose the requirements identity of Section 4.4(c)the proposed purchaser or transferee, then PSC's the Remaining Shares proposed to be sold or transferred, the agreed terms of the sale or transfer and any other material facts relating to the sale or transfer. Within fifteen (15) days after receipt of the Second Offer, the Preferred Shareholders shall give notice to the Key Stockholder of their intent to purchase all or any portion of the Remaining Shares on the same terms and conditions as set forth in the Second Offer. Each Preferred Shareholder shall have the right to purchase that number of the Remaining Shares as shall be equal to the aggregate Remaining Shares multiplied by a fraction, the numerator of which is the number of shares of Common Stock of the Company then owned by such Preferred Shareholder (including any shares of Common Stock deemed to be owned hereunder, being a number of shares equal to that into which the Series A-1 Convertible Preferred Stock, $.01 par value per share (the "Series A-1 Preferred Stock"), Series B-1 Convertible Preferred Stock, $.01 par value per share (the "Series B-1 Preferred Stock"), Series C Convertible Preferred Stock, $.01 par value per share (the "Series C Preferred Stock"), Series D Preferred Stock, Series A-2 Convertible Preferred Stock, $.01 par value per share (the "Series A-2 Preferred Stock"), Series B-2 Convertible Preferred Stock, $.01 par value per share (the "Series B-2 Preferred Stock"), Series C-2 Convertible Preferred Stock, $.01 par value per share (the "Series C-2 Preferred Stock"), and Series D-2 Convertible Preferred Stock, $.01 par value per share (the "Series D-2 Preferred Stock"), held by such Preferred Shareholder is convertible on the date of the Second Offer) and the denominator of which is the aggregate number of shares of said Common Stock then issued and outstanding and held by (and deemed to be held by) all the Preferred Shareholders. (The amount of shares each Preferred Shareholder or otherwise acquire Qualified Transferee, as that term is defined below, is entitled to purchase under this Section 3 shall be referred to as its "Pro Rata Fraction"). Each Preferred Shareholder shall have the Class B right to transfer its right to any Pro Rata Fraction or part thereof to any Qualified Transferee. In the event a Preferred Shareholder does not wish to purchase or to transfer its right to purchase its Pro Rata Fraction, then any Preferred Shareholders who so elect shall have the right to purchase, on a pro rata basis with any other Preferred Shareholders who so elect, any Pro Rata Fraction not purchased by a Preferred Shareholder or Qualified Transferee. If the Preferred Shareholders do not elect to purchase all of the Offered Shares, then there shall be no right to purchase shares pursuant to this Section 3(b). Each Preferred Shareholder shall act upon the Second Offer as soon as practicable after receipt of the Second Offer, and in all events within fifteen (15) days after receipt thereof. Each Preferred Shareholder shall have the right to accept the Second Offer as to all or part of the Remaining Shares subject offered thereby. In the event that a Preferred Shareholder shall elect to purchase all or part of the Remaining Shares covered by the Second Offer, said Preferred Shareholder shall individually communicate in writing such election to purchase to whichever of the Key Stockholders has made the Second Offer, which communication shall be delivered by hand or mailed to such offer or Options Key Stockholder at the address set forth on SCHEDULE II hereto and as described in respect thereof Section 7 below and shall, when taken in conjunction with the Second Offer be deemed to constitute a valid, legally binding and enforceable agreement for the sale and purchase of the Shares covered thereby. In the event that the Preferred Shareholders do not purchase all of the Remaining Shares offered by the Key Stockholder pursuant to and within thirty (30) days after the Second Offer, each such agreement to purchase the Remaining Shares shall be terminated; provided that in deemed null and void, and such Remaining Shares may be sold by such Key Stockholder at any time within ninety (90) days after the event such acceptance does not result in a sale or acquisition of such Class B Shares within three (3) months expiration of the rejection or non-acceptance of the First Offer by PSC, then SBC shall not Sell such Class B Shares to any third party unless such Shares or Options in respect thereof are offered again to PSC as provided in Section 4.4(a). (e) The rights set forth in this Section 4.4 shall not be assignable by PSC except in whole and to a Wholly-Owned Subsidiary of PSC.Second